Want yet another admonition not to be too focused on implementing the Patient Protection and Affordable Care Act to the exclusion of other duties? Here’s one from Edward F. Harold of Atlanta-based law firm Fisher & Phillips.
Harold’s concern is that HR pros will give too little attention to matters taken quite seriously by the Equal Employment Opportunity Commission, and that bad things may happen as a result. So he offers a checklist to remind those in HR of their full range of duties. He uses retail work as his template. Here is our abbreviated version.
ADA accommodations vs. light duty
Harold notes that injuries in retailing often cause consternation and conflict between operational types and those charged with seeing that everyone is working away without interruption.
“The vast majority of jobs in retail stores require that an individual be able to perform a broad range of physical tasks from stooping and bending to stock low shelves, to lifting items for scanning at the cash register, to pushing and pulling carts of goods for stocking,” he says. “Medical restrictions on an employee’s physical abilities can be extremely hard to accommodate within the concept of reasonable accommodation under the American with Disabilities Act. That is, in many cases, the only way to allow someone with a physical restriction to continue to work is either by a transfer to a different position with lesser physical requirements or by removing essential functions.”
But, he notes, this can be tricky. Sometimes there’s no way to change a person’s job to accommodate them. Sometimes they just need to take a break till they get better. And accommodation and employer liability have different definitions if the injury is work-related rather than no-work-related.
“Problems arise when store managers try to apply practices utilized in work-related injury scenarios to non-work-related situations. Having been instructed to provide light duty to one employee, they will often take it upon themselves to treat the next situation in the same manner because that’s what they did last time, without comprehending the distinction between work-related and non-work-related injuries. Risk managers, on the other hand, can become singularly focused on getting employees back to work to reduce the company’s workers’ compensation costs, creating hardships for store managers,” Harold says.
“Retailers should assess how they are handling employee restrictions arising from workplace injuries. Particularly:
- Are the disruptions to the store being appropriately considered before returning an employee to work?
- Does the risk department have the ability to offer particularized guidance to store managers depending on the severity of the restrictions?
- Are the managers at the store level being trained how to work with the risk department to achieve its goals?
Today’s lean staffing scenario suddenly makes everyone’s presence at work vital to success. Yet life happens, and it happens more often to some folks, he says.
“Because of this, store managers quickly become unsympathetic to employees who often miss work. Rather than terminating the employee, a process requiring paperwork and review by higher-level decision makers, store managers take other steps such as reducing the employee’s scheduled hours or scheduling them for undesirable shifts in an effort to minimize the impact of the employee’s poor attendance. These efforts are often undetectable by the company if the employee does not come forward to complain.
“Given the complexity of the FMLA, it is difficult if not impossible for these managers to distinguish between attendance issues for reasons that the FMLA protects and those that it does not. There is no requirement under the FMLA that an employee complain in order to have a claim. As such, store managers can easily unwittingly be creating FMLA liability for the company by their actions.”